Plaintiffs, former employees of Scudder/Deutsche Former who had participated in defined contribution retirement plans, filed a class action against various defendants for violations of ERISA (Employee Retirement Income Security Act); specifically, the class action complaint alleged that defendants breached fiduciary duties owed under ERISA by engaging in market timing and late trading in connection with the plans’ investment in mutual funds. In re Mutual Funds Investment Litig., 251 F.R.D. 185, 186 (D.Md. 2008). The Judicial Panel on Multidistrict Litigation coordinated the class action litigation for pretrial purposes in the District of Maryland. Id. During the course of the MDL litigation, class action plaintiffs sought from defendants the production of certain documents “previously disclosed by the Scudder/Deutsche defendants to regulatory officials, specifically the SEC and the New York Attorney General’s Office, in connection with those agencies’ investigation of similar allegations against the defendants.” Id. Defendants refused on the grounds that the documents were protected from disclosure by the attorney-client privilege and/or attorney work-product protection, and that the documents had been disclosed to regulators “subject to a confidentiality agreement.” Id. In essence, defense attorneys relied on the doctrine of “selective waiver” in opposing plaintiffs’ document request, id.; the district court rejected the defense arguments and ordered defendants to produce the documents requested.

The documents had been produced to regulators “subject to ‘non-waiver’ and ‘confidentiality’ agreements” that expressly stated that “Deutsche Bank does not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties” and required regulators to “maintain the confidentiality of the Confidential Materials pursuant to this agreement and…not disclose them to any third party”; ultimately, defendants settled with the regulatory agencies and paid more than $100 million in civil penalties. In re Mutual Funds, at 186. The class action plaintiffs sought production of all documents given to the SEC or other regulatory agencies with regard to market timing or late trading; defendants withheld 36,000 pages, asserting the attorney-client privilege and/or work product doctrine. Id., at 186-87. In their motion to compel, plaintiffs did not dispute whether the documents generally would fall within the scope of those doctrines; rather, they argued that the privileges had been waived. Id., at 187. The district agreed: “There is no question that the defendants have disclosed otherwise protected material, voluntarily, to an adversary, for their own benefit in negotiating a settlement with the regulators.” Id. After discussing Fourth Circuit and Tenth Circuit authority concerning disclosures that constitute a subject-matter waiver of attorney-client and work product documents and of the validity of “selective waiver” as a defense to such waiver, the district court granted plaintiffs’ motion. The district court concluded at pages 187 and 188, “The defendants’ voluntary disclosure of otherwise protected material to the [regulatory agencies], despite the entry of a confidentiality agreement, results in waiver.” However, the district court held that the waiver applied only to those documents “actually disclosed” to regulatory agencies; specifically, the court rejected class action plaintiffs’ claim that defendants’ production constituted a “subject matter waiver as to any attorney-client and non-opinion work product, not simply waiver as to the actual documents disclosed.” Id., at 188.

NOTE: It would be interesting to consider how the district court would have ruled if newly-enacted Federal Rule of Evidence 502 had been in effect. The statute took effect September 19, 2008, and may be found here.

Michael J. Hassen's litigation practice spans almost 30 years and emphasizes general business and commercial litigation, including class action defense and unfair business practice representative actions (section 17200).

He represents lenders in all facets of lender litigation, ranging from class actions and unfair business practices based on alleged "predatory" lending and RESPA violations or alleged violations of the Fair Debt Collection Practices Act, to claims alleging elder abuse or challenging the validity or priority of liens.

Michael also has significant experience in business torts such as misappropriation of trade secrets and raiding of corporate employees, ADA claims, and all phases of commercial and real estate finance, construction finance and construction defect claims.

He is experienced in appellate matters, having had primary responsibility for preparing more than 100 appellate briefs.